Theories of Truth Finding in Criminal Procedure: An Evolutionary Approach
![handle is hein.journals/cdozo10 and id is 493 raw text is: THEORIES OF TRUTH FINDING IN CRIMINAL
PROCEDURE: AN EVOLUTIONARY
APPROACH
John D. Jackson*
TABLE OF CONTENTS
I. Introduction .......................................... 475
II. The Growing Disenchantment ........................ 476
III. Comparative Criminal Procedure ..................... 481
IV. The Challenge to Authority ........................... 486
V. The Triumph of the Scientific Method ................ 496
VI. The Ideals of the Scientific Method Unrealized ........ 504
VII. The Emergence of a Dialectic Theory ................. 513
VIII. Conclusion .................................. ........ 526
I. INTRODUCTION
A growing disenchantment with the fact-finding process in An-
glo-American criminal justice throughout this century has come to
challenge what has been called the optimistic and complacent ration-
alism of evidence scholarship in the common law world.' This has led
to a belief that present adversary procedures are insufficiently com-
mitted to truth finding, and has provoked fresh interest in the old
debate whether the nonadversary procedures of civil law continental
countries are better able to find the truth than the adversary proce-
dures of common law countries.2 Instead of continuing this rather
* Barrister-at-Law, Lecturer in Law, The Queen's University of Belfast. University of
Durham, B.A., 1976; University of Wales, LL.M., 1980. Much of the research for this Article
was assisted by a grant from the Swiss Institute of Comparative Law whose support I greatly
appreciate. I express special thanks to Dr. Jan St6pan of the Swiss Institute whose help was
invaluable. I am also grateful for the comments and encouragement of Zenon Bankowski,
Desmond Greer, Stephen Livingstone, Peter Tillers, William Twining, and Thomas Weigend.
I Twining, Identification and Misidentification in Legal Processes: Redefining the Prob-
lem, in Evaluating Witness Evidence 255, 262 (S. Lloyd-Bostock & B. Clifford eds. 1983);
Twining, The Rationalist Tradition of Evidence Scholarship, in Well and Truly Tried 211, 248
(L. Waller & E. Campbell eds. 1982) [hereinafter Twining, Rationalist Tradition].
2 This issue has been the subject of great controversy at least since the nineteenth century.
See Dama~ka, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A
Comparative Study, 121 U. Pa. L. Rev. 506 (1973) [hereinafter Dama~ka, Barriers]; Jescheck,
Principles of German Criminal Procedure in Comparison with American Law, 56 Va. L. Rev.
239 (1970). Fresh interest in the United States can be traced to the 1970s with the publication](ViewImageLocal?handle=hein.journals/cdozo10&div=33&collection=&method=preview&ext=.png&size=3)
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Theories of Truth Finding in Criminal Procedure: An Evolutionary Approach
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